Tradieh v LM Hayter & Sons Pty Ltd

Medium Neutral Citation: Tradieh v LM Hayter & Sons Pty Ltd [2025] NSWSC 840

Hearing dates: 17 July 2025

Date of orders: 30 July 2025

Decision date: 30 July 2025

Jurisdiction: Common Law

Before: Stern J

Decision: Amended summons filed 14 March 2025 is dismissed with costs.

Catchwords: WORKERS COMPENSATION — medical assessment — medical dispute — degree of permanent impairment as a result of an injury — whether appeal panel erred in confirming medical assessment certificate — whether error of law on the face of the record for appeal panel to confirm medical assessment certificate — whether medical assessor failed to explain why his assessment of the plaintiff’s degree of permanent impairment differed substantially from that of an orthopaedic surgeon upon which the plaintiff had relied for the purpose of her claim — where medical assessor did not so err and therefore not error of law on the face of the record for appeal panel to confirm medical assessment certificate
WORKERS COMPENSATION — medical assessment — medical dispute — degree of permanent impairment as a result of an injury — whether appeal panel erred in confirming medical assessment certificate — whether error of law on the face of the record for appeal panel to confirm medical assessment certificate — whether medical assessor failed to give proper, genuine and realistic consideration to the report of an orthopaedic surgeon upon which the plaintiff had relied for the purpose of her claim — where medical assessor did not so err and therefore not error of law on the face of the record for appeal panel to confirm medical assessment certificate
WORKERS COMPENSATION — medical assessment — medical dispute — degree of permanent impairment as a result of an injury — whether appeal panel erred in confirming medical assessment certificate — whether appeal panel implicitly found error in the medical assessment certificate and thus did not have jurisdiction to confirm the medical assessment certificate — where appeal panel did not so err

Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 60
Personal Injury Commission Act 2020 (NSW), ss 5, 20(2)(d)
Personal Injury Commission Rules 2021, rr 5, 16(1)
Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), ss 65, 66, 151H
Workplace Injury Management and Workers Compensation Act 1998, Ch 7; ss 293, 319(c), 321, 322, 325, 327, 328(5)

Cases Cited: Allianz Australia Insurance Limited v Estate of the Late Summer Abawi [2025] NSWCA 85
Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; [2012] HCA 46
Sawaneh v Flintwood Disability Services Ltd [2024] NSWCA 178
Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380
Stolzenberg v Workers Compensation Nominal Insurer [2025] NSWCA 40
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980 )144 CLR 13; [1980] HCA 13
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55

Texts Cited: Guides to the Evaluation of Permanent Impairment (5th ed, 2001, American Medical Association), pp 384, 537; tables 15.3, 17.9, 17.12
NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 2021, State Insurance Regulatory Authority), cll 1.6, 1.7, 1.8, 2.16, 3.1, 3.16, 3.17, 4.34

Category: Principal judgment

Parties: Sarah Tradieh (Plaintiff)
LM Hayter & Sons Pty Ltd (First Defendant)
President of the Personal Injury Commission of New South Wales (Second Defendant, submitting appearance)
Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendant, submitting appearance)

Representation: Counsel:
LD Robison with LR Smith (Plaintiff)
D Stiles (First Defendant)
Solicitors:
Santone Lawyers (Plaintiff)
Hicksons Lawyers (First Defendant)
Crown Solicitor for NSW (Second and Third Defendants)

File Number(s): 2024/00478360

Publication restriction: Nil

JUDGMENT

1. By amended summons dated 14 March 2025 the plaintiff seeks judicial review, in the exercise of this Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 197**0 (NSW), of a decision dated 10 October 2024 of an Appeal Panel of the Personal Injury Commission (Commission) made under s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act). In that decision, the Appeal Panel confirmed an earlier Medical Assessment Certificate dated 18 June 2024 (the MAC), given by Dr David Crocker under s 325 of the 1998 Act. Dr Crocker certified that the plaintiff had suffered 14% whole person impairment (WPI) on account of the injuries referred to him for assessment. As set out in a certificate of determination issued under s 294 of the 1998 Act on 14 November 2024, that meant that the plaintiff was entitled to lump sum compensation of $33,120 under s 66 of the Workers Compensation Act 1987 (NSW) (1987 Act).

2. By the time of the assessment by Dr Crocker, there was no dispute that the plaintiff had suffered from the following injuries by reason of (or consequent upon) an accident which occurred on 3 August 2018 in the course of her employment as a machine operator/labourer with LM Hayter & Sons Pty Ltd (the employer, the first defendant in these proceedings):

“Left lower extremity (ankle)

Right lower extremity (ankle and hip), consequential

Scarring”

(together, the Injuries)

3. The only dispute was as to the degree of WPI (assessed as required under s 65 of the 1987 Act and Ch 7 of the 1998 Act) sustained by the plaintiff by reason of the Injuries.

4. Having regard in particular to the terms of s 151H of the 1987 Act, which prevents any award of damages unless the relevant injury results in a WPI of at least 15%, the effect of Dr Crocker’s assessment is potentially of considerable significance to the plaintiff.

5. The plaintiff contends that the Appeal Panel’s decision is tainted by jurisdictional error or error of law on the face of the record and seeks orders setting it aside and remitting the plaintiff’s appeal to a differently constituted Appeal Panel for determination. The employer denies that the Appeal Panel erred, and in any event says that the errors alleged would fail the materiality threshold. The second and third defendants filed submitting appearances, consistent with the principle stated in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36; [1980] HCA 13.

6. The essential questions raised by the grounds of review are whether Dr Crocker erred by failing to explain why it was that his assessment of the plaintiff’s WPI (at 14%) differed substantially from that of an orthopaedic surgeon, Dr Eugene Gehr (at 30%), as set out in a report dated 5 June 2023 (Dr Gehr’s June 2023 report) upon which the plaintiff relied for the purpose of her claim for compensation under the 1987 Act*.* The plaintiff contends further that, in light of the matters set out in the MAC, Dr Crocker failed to give proper, genuine and realistic consideration to the assessment of WPI as set out in Dr Gehr’s June 2023 report, and that on account of both of these failures, it was an error of law on the face of the record for the Appeal Panel to have confirmed the MAC. She also contends that the Appeal Panel implicitly found error in the MAC and thus did not have jurisdiction under s 328(5) of the 1998 Act to confirm the MAC.

7. Save as regards the two matters referred to above, the plaintiff does not contend that Dr Crocker’s assessment of WPI, or the MAC, is in any way erroneous. Further, she accepts that Dr Crocker “discharge[d] … the obligation to have realistic engagement with Dr Gehr” to the extent that Dr Crocker identified an error in Dr Gehr’s methodology, but she submits that more was required of him by way of substantive engagement.

8. For the reasons set out below the summons should be dismissed with costs.

Background

9. Given the narrow issues raised on this application, it is unnecessary to rehearse the factual background in detail. In summary, the accident on 3 August 2018 involved the plaintiff, who was born on 21 June 1979 and is now aged 46 years, suffering an inversion injury to her left ankle, fracturing the distal left fibula and tearing the peroneal tendon, when she stepped onto a piece of bark at work. She returned to work with light duties and reduced hours after 12 weeks. She then suffered a right ankle injury at work in January 2019 when her crutch slipped. The plaintiff has not returned to work since. She sustained a fall at home in August 2022, relevantly injuring her right ankle and right hip. Whilst she also complained of a lumbar spine injury, it was resolved by consent prior to the referral to Dr Crocker for assessment that she is not entitled to compensation for that injury under the 1987 Act.

10. On 13 June 2023 the plaintiff claimed lump sum compensation under the 1987 Act, relying upon Dr Gehr’s June 2023 report. Dr Gehr assessed the plaintiff as having 30% WPI on the following basis:

“Left Ankle

She has had a left ankle soft tissue injury with two surgical procedures but has persisting pain and loss of range of motion. From Guidelines, page 15, paragraph 2.16 and 3.12,

and revised table 17-11 and AMA5, and AMA5, page 537, table 17.12,

WPI equals 5%.

Scars

Curvilinear scar laterally measuring approximately 12 cm, stretched out, hyper pigmented.

She has arthroscopic scars anteriorly.

From WorkCover Guidelines, page 74, table 14.1, she is conscious of the scar, noticeable colour contrast, able to easily locate, suture marks apparent, anatomic location visible, contour defects.

Minor limitation of ADLs, no treatment plan, and no adherence.

WPI equals 2%.

Right Ankle

Same references as above.

She has lateral ligament injury of the right ankle with a reconstruction, complicated by infection DVT with persisting pain and loss of range of motion.

Same references as above WPI equals 8%.

Lumbar Spine

She has a lumbar spine soft tissue injury with guarding and dysmetria with bilateral decreased sensation.

From Guidelines page 26, paragraph 4.24, DRE II, WPI equals 2 and from AMA5, table 384, table 15.3, WPI equals 5%.

Activities of Daily Living

From Guidelines, page 28, paragraph 4.34 for self-care, WPI equals 3%.

5%+3%=8%

Right Hip

She has right hip pain with decreased range of motion.

From Guidelines, page 15, paragraph 3.16 to 3.17 for loss of range of motion and AMA5, page 537, table 17.9, WPI equals 12%.

I have not considered extension.

Final permanent impairment combining 12%, 8%, 8%, 5%, and 2%, WPI equals 30%.”

11. Dr Gehr’s % WPI figures in fact add up to 35%. It is not clear how he reached his final figure of 30%.

12. The employer relied upon reports dated 29 August 2023 and 5 October 2023 from Dr Richard Powell, orthopaedic surgeon (the latter only addressing causation of the right hip and lumbar spine injuries). Dr Powell assessed the plaintiff’s WPI as being 8%, comprising 4% for the left lower extremity, 3% for the right lower extremity, and 1% for scarring.

13. Dr Gehr then prepared a supplementary report dated 8 March 2024 dealing with causation of the plaintiff’s hip and lumbar spine injuries. That report is of no substantive relevance to the issues raised in this application.

14. After a conciliation in early 2024, which resulted in consent orders and a certificate of determination being issued on 2 April 2024, the medical dispute between the parties narrowed to one as to the degree of permanent impairment sustained by the plaintiff on account of the Injuries: s 319(c) of the 1998 Act. That dispute was referred to Dr Crocker for medical assessment by a delegate of the President of the Commission on 8 April 2024.

15. Dr Crocker examined the plaintiff on 4 June 2024 and issued the MAC on 18 June 2024. The MAC included the following:

“9. THE FACTS ON WHICH THE ASSESSMENT IS BASED

The facts on which I have based my assessment of whole person impairment are:

History, physical examination and referral documentation.”

16. Dr Crocker’s reliance upon these matters was reiterated under the heading “10. Reasons for assessment”, where he explained, under the subheading “My opinion and assessment of permanent impairment”, that he had determined a final combined WPI of 14% having taken into account the plaintiff’s history, physical examination and referral documentation. At [10(b)] of the MAC, Dr Crocker explained his calculations as follows:

“With respect to the region of the right lower extremity and taking into account limitation with active range of motion at the right hip, a 20% lower extremity impairment is determined.

With respect to the non-affected contralateral side, a potential 5% lower extremity impairment is apparent. The Guides indicate that where findings are noted to the nonaffected contralateral side, this should be deducted from the region in question. As such, a 15% lower extremity impairment is determined pertaining to the right hip.

With respect to the region of the right ankle/hindfoot and taking into account limitation with active range of motion, a 14% lower extremity impairment is determined.

When the above impairments are combined, a 27% lower extremity impairment is determined which converts to 11% whole person impairment.

With respect to the left lower extremity and taking into account the region of the ankle pertaining to limitation with active range of motion, a 4% lower extremity impairment is determined.

It has been indicated that a peripheral nerve injury is also evident in relation to this region with respect to the sural nerve. When taking into account this sensory impairment, a 2% lower extremity impairment is determined. With reference to Table 16-10 (pg 498) of AMA 5, it is considered that a grade 3 deficit of 60% is applicable. When 60% is taken of 2%, a 1.2% finding is determined which rounds down to 1% lower extremity impairment.

When the lower extremity impairments of 4% and 1% are combined, a 5% lower extremity impairment is determined which converts to 2% whole person impairment.

With respect to scarring and reference to the TEMSKI table contained in the Workers Compensation Guidelines, it is evident that there are some pigmentary changes present and evidence of suture marks. There is nil loss of contour. The scars are present to regions that would be apparent if wearing shoes such as sandals. It is not considered that the scars are negatively impacting upon activities of daily living. There is nil underlying adherence. Taking the above into account, a 1% whole person impairment is determined with respect to these.

When taking into account the whole person impairments of 11%, 2% and 1%, a final combined whole person impairment of 14% is determined.

It is considered that there is nil evidence of a pre-existing injury or condition that needs to be taken into account by way of contributory impairment that would necessitate any deductions.”

17. At [10(c)], under the subheading “My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs”, Dr Crocker said as regards Dr Gehr’s June 2023 report:

“I have had the opportunity of reviewing the medical report (5.6.23) prepared by Dr Eugene Gehr, Consultant Orthopaedic Surgeon of Sydney. The doctor alludes to multiple impairments pertaining to the regions of the right hip, right ankle, left ankle and with respect to scarring. A final combined whole person impairment of 30% is documented. Respectfully, it is apparent that Dr Gehr had not combined the lower extremity impairments with respect to the right lower extremity and then converted this to a whole person impairment.”

18. There is no suggestion that Dr Crocker was wrong as to this, albeit that it is not clear to what extent this error affected Dr Gehr’s overall assessment of the degree of the plaintiff’s WPI.

19. As regards Dr Powell’s reports of 29 August 2023 and 5 October 2023, Dr Crocker said at [10(c)]:

“I have also reviewed the medical reports (29.8.23, 5.10.23) prepared by Dr Richard Powell, Consultant Orthopaedic Surgeon of Sydney. In relation to the right lower extremity, he had not considered that an injury had arisen as a consequence of work pertaining to the right hip. As such, a right lower extremity impairment with respect to limitation with active range of motion at the ankle/hindfoot was documented of 3% WPI.

In relation to the left lower extremity, he had taken into account limitation with active range of motion at the ankle/hindfoot and peripheral nerve injury such that a 4% whole person impairment is documented. He had outlined a 1% whole person impairment with respect to scarring. An overall 8% whole person impairment is documented.”

20. Dr Crocker also included a table in the MAC setting out the basis of his assessment of WPI:

| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | | Right Lower Extremity | 3.8.18 | Chapter 3, pp 13-23 | Chapter 17, 17.2f, Tables 17-9, 17-11 & 17-12, pp 533-538, Table 17-3, pg 527; | 11% | — | 11% | | Left Lower Extremity | 3.8.18 | Chapter 3, pp 13-23 | Chapter 17, 17.2f, Tables 17-11 & 17-12 pp 533-538; Table 17-3, pg 527; 17.2l, Table 17-37, pp 552; Chapter 16, Table 16-10, pg 482 | 2% | — | 2% | | Scarring (TEMSKI) | 3.8.18 | Chapter 14, Table 14.1, pp 73-76 | Chapter 8, Table 8-2, pp 178-189 | 1% | — | 1% | | Total % WPI (the Combined Table values of all sub-totals) | 14% |

21. The respective WPI assessments of Drs Gehr, Powell, and Crocker are:

| | Dr Gehr | Dr Powell | Dr Crocker | | Right lower extremity (hip and ankle) | 12% (hip) and 8% (ankle) (but these figures are affected by the error identified by Dr Crocker in the MAC) | 3% (ankle – he did not consider the hip) | 11% (covering both hip and ankle) | | Left lower extremity (ankle) | 5% | 4% | 2% | | Scarring | 2% | 1% | 1% |

22. On 16 July 2024, the plaintiff appealed against the MAC under s 327 of the 1998 Act on the grounds that that the MAC contained a demonstrable error: s 327(3)(d) and that the assessment was made on the basis of incorrect criteria: s 327(3)(c). These grounds were explained to be:

23. Failure to give adequate reasons as to differing opinion compared with other medical opinions, being a demonstrable error; and

24. Failure correctly to apply the criteria for assessing the right lower extremity, involving either incorrect criteria or demonstrable error.

25. The second ground of appeal is not relied upon by the plaintiff in this application for judicial review.

26. As to the first ground of appeal, the plaintiff’s submissions before the Appeal Panel focussed upon the difference between Dr Gehr’s WPI assessment and that of Dr Crocker. She contended that, even allowing for the error in Dr Gehr’s WPI assessment identified by Dr Crocker, Dr Gehr had a higher % figure for WPI and that she, as a layperson, could not glean from the MAC why that was so. She contended that this was “a demonstrable error in the form of a failure to give adequate reasons” and a failure to give proper, genuine and realistic consideration to her case.

27. On 12 August 2024 a delegate of the President of the Commission determined under s 327(4) of the 1998 Act that it was reasonably arguable that the MAC contained a demonstrable error, and thus the appeal could proceed.

28. On 10 October 2024 the Appeal Panel, constituted by two medical assessors and one legally qualified member of the Commission, determined that the MAC should be confirmed. Having set out the role of a medical assessor under the 1998 Act and Dr Crocker’s findings and reasons, the Appeal Panel’s key reasoning on the plaintiff’s first ground of appeal, in its statement of reasons at [27], was:

“The appellant complains on appeal that the Medical Assessor did not adequately explain why he differed from Dr Gehr. The MAC must be read as a whole. What the Medical Assessor has done is assess, in accordance with the correct criteria, the impairment on the day of assessment applying his clinical judgment to his examination findings. His examination findings differ from those recorded by Dr Gehr. The Medical Assessor is entitled to rely on his clinical findings on the day of assessment and has applied the correct criteria to assess impairment. There is no further explanation that is required.”

The plaintiff’s grounds for seeking judicial review

27. The plaintiff’s contentions of error on the part of the Appeal Panel developed significantly in oral submissions before this Court. Ultimately, she contended that the Appeal Panel erred in three ways (which I will refer to as grounds one, two and three).

28. In misconstruing s 325 of the 1998 Act by finding that the matters referred to in the Appeal Panel’s reasons at [27] (above at [26]) sufficed to discharge the obligations of Dr Crocker under the 1998 Act. She contended, in effect, that, having regard to the statutory context for the medical assessment, Dr Crocker was required to engage substantively with the integers of Dr Gehr’s reasoning and not merely with his conclusion or methodology. Whilst her complaint was framed as one of a failure by Dr Crocker substantively to engage with Dr Gehr’s assessment of WPI, her contentions as to this were predicated upon the failure by Dr Crocker to demonstrate in the MAC that he had engaged with the integers of Dr Gehr’s assessment. In this context, she also contended that s 325 of the 1998 Act required Dr Crocker to explain his reasons for differing from the assessment of WPI reached by Dr Gehr. She contended that that was what was entailed in him setting out the actual path of reasoning by which he reached his conclusion, and, further, his explanation had to be sufficient to be understood by a layperson.

29. In misconstruing the MAC by finding that Dr Crocker had engaged substantively with Dr Gehr’s assessment and that he had provided an explanation for his assessment of WPI differing from that reached by Dr Gehr.

30. In confirming the MAC under s 328(5) of the 1998 Act and not revoking the MAC and performing its own assessment, in circumstances where the Appeal Panel’s reasons should be construed as supplementing Dr Crocker’s reasoning, and thus implicitly finding error in the MAC.

31. She contended that grounds one and two were errors of law on the face of the record, and ground three was jurisdictional error. Consistent with Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [130] (Basten JA, Handley and McColl JJA agreeing), the common position of the parties was that the reasons of the Appeal Panel constitute “the record” for the purposes of s 69(4) of the Supreme Court Act.

32. Should any of these grounds be made out, the plaintiff presses a further ground, being that the Appeal Panel erred by failing to re-assess the degree of the plaintiff’s WPI. However, the plaintiff accepts that this ground cannot arise unless one of the other errors she relies upon is made out.

Consideration

30. The plaintiff’s contentions in grounds one and two are predicated upon the construction she advances of the legislation governing the roles, respectively of a medical assessor and Appeal Panel, under the 1998 Act. Given that the plaintiff relies upon the same matters in support of her contentions that Dr Crocker failed sufficiently to engage with Dr Gehr’s assessment of WPI and failed to give reasons for differing from that assessment, it is convenient to address these two contentions together. Moreover, as the plaintiff’s contentions as to error on the part of the Appeal Panel are predicated upon alleged errors on the part of Dr Crocker, it is convenient to address the latter first.

31. The plaintiff’s first contention is that, where the medical dispute referred to the medical assessor is one as to the degree of permanent impairment of the worker as a result of an injury, under s 319(c) of the 1998 Act, the medical assessor is required in the MAC to engage substantively with the integers of, and explain why he or she reaches a different assessment from, the expert assessments of WPI relied on by the parties. This, she submits, flows from the fact that, under s 293(1) of the 1998 Act, it is a “medical dispute” that is referred for medical assessment and the context is thus, as she puts it, “quasi-adversarial”. The plaintiff emphasises that, under s 325 of the 1998 Act, a medical assessor must give a MAC as to the matters referred for assessment.

32. She submits that it necessarily follows that, under the 1998 Act, a medical assessment will always occur in the context of a dispute, and where the dispute is as to the degree of a claimant’s WPI, that will likely involve competing assessments of WPI relied upon by a claimant and an employer. Thus, she submits, an important part of a medical assessor’s role under the 1998 Act is to engage substantively with the parties’ respective positions, in particular, with the integers of the expert assessments of WPI they rely upon. Further, she contends, the reasons given by a medical assessor must explain why it is that the medical assessor has differed from the respective positions advocated for by the parties and any expert assessments of WPI they rely upon.

33. What is required of a medical assessor by way of substantive engagement and reasons is necessarily to be determined by reference to the applicable legislative scheme. Thus, as counsel for the plaintiff accepted, her submission must accommodate both what the High Court said in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot v Kocak”) and the analysis of Leeming JA (Basten JA and Simpson AJA agreeing) in Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 (“IAG v Keen”), both of which have been applied in the context of the 1998 Act: see eg Sawaneh v Flintwood Disability Services Ltd [2024] NSWCA 178 at [43]-[44] (Adamson JA, Leeming JA and Price AJA agreeing) and [2025] NSWCA 40 at [22]-[23] (Stern JA, Griffiths and Price AJJA agreeing).

“It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

The reasons that s 68(2) of the Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.”

(Footnotes omitted.)

35. In IAG v Keen the alleged error on the part of the assessor was in failing to consider or respond to a contention in the insurer’s submissions, supported by expert evidence, that the claimant’s impairment was not causally related to the accident. The referral to the assessor in IAG v Keen was under s 60 of the Motor Accidents Compensation Act 1999 (NSW), which, as is the case with a referral to a medical assessor under the 1998 Act, involved the referral of a medical dispute for assessment. In that case, relying upon Wingfoot v Kocak, Leeming JA distinguished the role of an assessor from that of a court which must address substantial and clearly articulated submissions as part of its task of resolving judicial controversies. At [40]-[43] his Honour explained:

“The function of the assessor is quite different. The assessor was obliged following the referral by [the New South Wales State Insurance Regulatory Authority (SIRA)] to determine a quintessentially factual issue: the degree of permanent impairment suffered by Mr Keen caused by the motor accident, reduced to a percentage calculated in accordance with the Guidelines. …

Dr Meakin received more than 2,000 pages of material. His task was to make binding factual determinations, following his review of that material and following a clinical examination of Mr Keen. He did just that. It was not part of his function to assess the cogency of the “case” advanced on behalf of the insurer.

Further, the standard of reasons required of a medical assessor is different from the standard required of a court. It is to be borne firmly in mind that Dr Meakin was a qualified medical specialist, and ultimately his certificate reflected his own professional judgment as to the whole person impairment of Mr Keen and whether it had been caused by the motor vehicle accident.

The reasons required to be given by the medical assessor must be sufficient to explain the actual path of reasoning by which the opinion is reached, and in sufficient detail to enable a court to see whether that opinion involves any error of law.”

36. The plaintiff attempts to reconcile her contentions as to error with these authorities (which she did not seek to distinguish) by emphasising that the dispute before Dr Crocker resolved into a dispute between the assessments of WPI reached by, respectively, Drs Gehr and Powell. In that context, she submits, it was essential for Dr Crocker, in the MAC, both to engage substantively with the integers of Dr Gehr’s opinion and not just his conclusion, and to explain, in terms accessible to a layperson, why it was that his assessment differed from that of Dr Gehr. More particularly, her counsel submitted orally, Dr Crocker had “[t]o explain differences from a medical perspective as to why Dr Powell is right or wrong and Dr Gehr is right or wrong”. This was, the plaintiff’s counsel submitted, because the jurisdictional gateway for a medical assessment under the 1998 Act gave the process of the medical assessment “the quality of dispute resolution”.

37. This contention should be rejected. Ultimately, as is clear from Wingfoot v Kocak and IAG v Keen, both of which arose in the context of (for this purpose) relevantly analogous legislative schemes, Dr Crocker was required to make an assessment of the factual or evaluative question referred under s 319(c) of the 1998 Act, being the degree of the plaintiff’s permanent impairment as a result of the Injuries. Notwithstanding that s 321 of the 1998 Act provides for a medical dispute to be referred for assessment, the role of the medical assessor is not to adjudicate between or to resolve the competing positions of the parties. A medical assessor must plainly consider the material before him or her, and that material will likely include expert assessments of WPI relied upon by a claimant and an employer where the dispute is as to the degree of the claimant’s WPI, but no higher level of “engagement” is required under the 1998 Act.

38. Further, what is required by way of “proper, genuine and realistic consideration” depends upon the subject matter and purpose of the consideration in the particular statutory context*: Bay Simmer Investments Pty Ltd v State of New South Wales* [2017] NSWCA 135 at [56] (Basten JA, Leeming JA and Sackville AJA agreeing) and Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215 at [62] (Payne JA, Ward ACJ and Basten AJA agreeing). In the context of the 1998 Act, largely for the reasons set out in Wingfoot v Kocak and IAG v Keen, it is not incumbent upon a medical assessor to express his or her own assessment by reference to that of the experts relied upon by the claimant and employer, nor is a medical assessor required to explain in the medical assessment certificate why it is that the integers of his or her assessment of WPI differ from those of the experts relied upon by the parties.

39. The plaintiff also sought to support her contention by reference to the observation of Basten AJ in [2024] NSWSC 1380 at [43] that “sometimes it will be necessary to know the case presented to the tribunal to assess the adequacy of reasons”. In context, it appears that his Honour’s reference to “the case presented” was to the notice by which the appeal was brought against the decision of the medical assessor rather than to the evidence before the medical assessor (see as to this his Honour’s analysis at [41] of what constitutes the “record” for the purposes of s 69(4) of the ). The employer’s grounds of appeal to the appeal panel in that case included both that the medical assessor had failed to address the relevant medical evidence and that the medical assessor’s default deduction of 10% for pre-existing injury to the claimant’s left ankle was at odds with the available evidence. Having regard to this context, it is apparent that Basten AJ’s observation at [43] of his judgment does not support the plaintiff’s contention that it was incumbent upon Dr Crocker in his reasons as set out in the MAC to say more than he did about the respective assessments of WPI of Drs Gehr and Powell.

A medical assessment certificate is to be in a form approved by the President and is to—

(a) set out details of the matters referred for assessment, and

(b) certify as to the medical assessor’s assessment with respect to those matters, and

(c) set out the medical assessor’s reasons for that assessment, and

(d) set out the facts on which that assessment is based.

42. As is clear, what is required is that a medical assessor set out the reasons for his or her own assessment with respect to the matters referred for assessment, here the dispute as to the plaintiff’s degree of WPI from the Injuries. Consistent with the authorities set out above, that requires a medical assessor to give reasons for his or her own assessment of the plaintiff’s WPI, not to give reasons as would be required of someone adjudicating a dispute.

43. Under s 20(2)(d) of the Personal Injury Commission Act 2020 (NSW) (PIC Act), an entity known as the Rule Committee of the Commission may make rules not inconsistent with the PIC Act or enabling legislation, which under s 5 of the PIC Act includes the 1998 Act with respect to the practice and procedure to be followed by medical assessors. Under r 16(1) of the Personal Injury Commission Rules 2021 (NSW) (PIC Rules) the President of the Commission may approve forms for use in applicable proceedings, including, under r 5, medical assessment proceedings.

44. It was common ground between the parties that the form approved by the President of the Commission as at 18 June 2024, when Dr Crocker issued the MAC, included:

10. REASONS FOR ASSESSMENT

a. My opinion and assessment of impairment.

b. An explanation of my calculations (if applicable).

c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.

45. The plaintiff contends that s 325(2)(c) of the 1998 Act, read together with subheading 10(c) in the approved form, required that Dr Crocker’s reasons for assessment include the reasons why his opinion differed from other medical opinions in the material before him or her. Counsel for the plaintiff’s contention as to this was that subheading 10(c) in the approved form was a “legislatively, mandatory component of the reasons”.

46. In this regard, I would, of course, accept that s 325(2) of the 1998 Act requires that a medical assessment certificate be in a form which includes subheading 10(c) in the currently approved form. I would not, however, accept that the content of that form can add substantively to, or expand, the content of the obligation to give reasons, as set out in s 325(2)(c) of the 1998 Act.

47. As a matter of statutory construction, the terms of any form approved by the President of the Commission cannot change the role of the medical assessor under the Act, nor the meaning to be ascribed to the obligations in s 325(2)(c) and (d) of the 1998 Act. So to find is consistent with the general principle that it is impermissible (subject to where the delegated legislation is part of a framework promulgated contemporaneously with the Act, which is not suggested to be the case here) to construe an Act using delegated legislation made under that Act: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; [2012] HCA 46 at [56] (French CJ); see also Allianz Australia Insurance Limited v Estate of the Late Summer Abawi [2025] NSWCA 85 at [50] (Kirk JA, Stern JA agreeing). That is consistent with the terms of the PIC Act, pursuant to which the PIC Rules enabling the President of the Commission to approve forms for use in medical assessments are made. Those rules must not be inconsistent with the terms of the 1998 Act, which necessarily includes s 325(2).

48. Thus, the substantive obligation on a medical assessor to give reasons comes from s 325(2)(c) of the 1998 Act read in the context of the 1998 Act as a whole, and, as a matter of form, the MAC must be in whatever form is currently approved by the President of the Commission (noting here that the plaintiff’s case was not put as a failure by Dr Crocker to comply with the requirement that the MAC be in the approved form). Contrary to the plaintiff’s contention, the chapeau to s 325(2) of the Act should not be read as delegating to the President of the Commission the ambit of the substantive content of a medical assessor’s obligation to give reasons for his assessment under the 1998 Act.

49. It follows that I reject the plaintiff’s contentions that Dr Crocker erred either in not properly engaging with Dr Gehr’s June 2023 report or in giving inadequate reasons for his assessment.

50. In any event, I also reject the plaintiff’s contentions that Dr Crocker did not give proper, genuine or realistic consideration to Dr Gehr’s June 2023 report and did not give reasons in the MAC why his assessment of the plaintiff’s degree of WPI differed from that of Dr Gehr. I have approached this issue on the uncontroversial basis that the reasons of an administrative decision-maker must be read fairly and as a whole: see eg the summary of principles set out by Bell P in (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77]. As Leeming JA explained in [2016] NSWCA 55 at [6] (Meagher JA agreeing):

“The question is whether the reasoning process can be discerned, reading the reasons as a whole and applying a ‘beneficial construction’ to which the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.”

51. Starting with the issue of proper, genuine and realistic consideration, the material before Dr Crocker included the plaintiff’s application to the Commission and attached documents, the employer’s reply and attached documents, and the report of Dr Gehr dated 8 March 2024. As set out at [15]-[16] above, Dr Crocker explained twice in the MAC that he had based his assessment on the “referral documentation”, which included the two reports from Dr Gehr. Moreover, it is clear from [10(c)] of the MAC, as set out at [17] above, that Dr Crocker had reviewed Dr Gehr’s June 2023 report and had considered not just the conclusions reached but the methodology used by Dr Gehr. Dr Crocker could not otherwise have identified that Dr Gehr had used an erroneous approach in arriving at his % for right lower extremity WPI. In light of these matters, the plaintiff has not discharged her onus of showing that Dr Crocker failed to give proper, genuine and realistic consideration to Dr Gehr’s June 2023 report, noting (as set out above) that what that requires depends upon the relevant statutory context.

52. I am also satisfied that Dr Crocker’s reasons disclosed the basis upon which his assessment differed from that of Dr Gehr. As he was required under s 322 of the 1998 Act to do, Dr Crocker approached his task in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 2021, State Insurance Regulatory Authority) (the Guidelines). The plaintiff made no submission to the contrary.

53. At cll 1.6-1.8, the Guidelines provide:

1.6 The following is a basic summary of some key principles of permanent impairment assessments:

a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:

• whether the condition has reached Maximum Medical Improvement (MMI)

• whether the claimant’s compensable injury/condition has resulted in an impairment

• whether the resultant impairment is permanent

• the degree of permanent impairment that results from the injury

• the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.

b. Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.

c. In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated. If, in an unusual situation, a related injury/condition has not previously been identified, an assessor should record the nature of any previously unidentified injury/ condition in their report and specify the causal connection to the relevant compensable injury or medical condition.

d. The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought – see also paragraphs 1.43 and 1.44 in the Guidelines.

1.7 Medical assessors are expected to be familiar with chapters 1 and 2 of [Guides to the Evaluation of Permanent Impairment (5th ed, 2001, American Medical Association) (the AMA5)], in addition to the information in this introduction.

1.8 The degree of permanent impairment that results from the injury/condition must be determined using the tables, graphs and methodology given in the Guidelines and the AMA5, where appropriate.”

54. It was sufficiently apparent to a layperson, from a comparison between the MAC and Dr Gehr’s June 2023 report, that each of Drs Gehr and Crocker relied in their assessments of WPI upon their findings on examination, including as to range of motion, considered by reference to the Guidelines and the AMA5. The layperson should be taken to be aware that the role of the medical assessor is to make an assessment using his or her own clinical judgment and applying the Guidelines including the tables in the Guidelines to be used for evaluating % WPI. Differences in the findings of, respectively, Drs Gehr and Crocker, on examination are readily apparent on the face of the two assessments, as are the pages or paragraphs/tables in the Guidelines and the AMA5 that each relied upon. These necessarily required that Dr Crocker make a number of evaluative judgments based upon his own findings on examination and the plaintiff’s history and account of symptoms as given to him. Having regard to this, it was sufficiently disclosed in the MAC why Dr Crocker’s assessment of WPI differed from that of Dr Gehr. Nothing more was needed.

55. Dr Crocker’s reference to Dr Gehr’s assessment of 30% WPI, at [10(c)] of the MAC, identifies the overarching difference in the degree of the plaintiff’s WPI between that assessed by Dr Crocker and that assessed by Dr Gehr, the basis for which is apparent from the MAC as a whole when read together with Dr Gehr’s June 2023 report. In the event, Dr Crocker went further and explained an error in Dr Gehr’s methodology when assessing WPI associated with the plaintiff’s right lower extremity injury. The plaintiff did not seek to establish the significance of that error on the part of Dr Gehr, and it is thus not possible to form any view as to the extent to which that error explained differences between Drs Gehr and Crocker’s respective assessments of WPI.

56. Further, contrary to the plaintiff’s submission, Dr Crocker does not engage any differently with Dr Powell’s reports. At [10(c)] of the MAC, Dr Crocker simply notes Dr Powell’s % WPI figures for each injury, noting that Dr Powell had not included anything for the right hip injury as he had found that not to result from the plaintiff’s injury at work. Again, the explanation of the differences in assessed WPI as between Drs Crocker and Powell is to be found by considering the MAC as a whole.

57. In these circumstances, even if I had accepted the plaintiff’s contentions as to the role and obligations of a medical assessor under the 1998 Act, I would have rejected the plaintiff’s contentions that Dr Crocker did not properly engage with Dr Gehr’s June 2023 report and that his reasons fell short of those required*.* Whilst Dr Crocker’s assessment differed from that of Dr Gehr, contrary to the plaintiff’s submission, there is nothing to suggest that Dr Crocker had “a wholesale disregard for one medicolegal report”, nor that Dr Crocker failed to consider Dr Gehr’s June 2023 report as a whole.

58. It necessarily follows that the Appeal Panel did not err in not identifying or correcting error in the MAC.

Conclusion

61. It follows that the summons should be dismissed with costs.

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